Lockport Growers Co-operative Ass'n v. McAuley

Majority

p. 807

Fourth Department,

November, 1926.

Lockport Growers Co-operative Association, Inc., Respondent, v. John M. McAuley, Appellant.

Headnote

Appeal from an order of the County Court of Niagara county, entered in the Niagara county clerk’s office on January 20, 1923, setting aside the verdict of a jury theretofore rendered in favor of the defendant and granting a new trial.

This case was carefully tried and submitted to the jury. A fair question of fact was presented for its decision. The decision is not against the weight of the evidence. The charge of the learned county judge was clear. No exceptions thereto were taken by the respondent. The jury could not have

p. 808

failed to understand the simple issue presented for its decision. While we are loth to interfere with the discretion exercised by a trial judge in setting aside a verdict, we are unable to find in this record justification for the order made. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ. Order reversed on the facts, with costs, and verdict reinstated, with costs.'